Lin R. Rogers Electrical Contractors

National Labor Relations Board - Board Decisions

Aug 6, 1999

328 N.L.R.B. 1165 (N.L.R.B. 1999)

LIN R. ROGERS ELECTRICAL CONTRACTORS 1165
Lin R. Rogers Electrical Contractors, Inc. and Inter-
national Brotherhood of Electrical Workers,
Local Unions 59 and 116, AFL–CIO. Cases 16–
CA–17563 and 16–CA–17563–2
August 6, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND
LIEBMAN
On June 11, 1996, Administrative Law Judge Philip P.
McCleod issued the attached bench decision. The Re-
spondent filed exceptions and a brief in support, and the
General Counsel filed cross-exceptions and a supporting
and answering brief which the Charging Parties adopted.1
The Respondent thereafter filed an answering and reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions,
and to adopt the recommended Order as modified3 and
set forth in full below.
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act when it refused to hire six Un-
ion applicants at its Lewisville, Texas jobsite, and termi-
nated employee Roger Grizzle, an employee who re-
vealed his intent to organize after he was hired and who
was terminated on the day he joined a union picketline.
We agree with those findings for the reasons set forth in
the judge’s bench decision, as explained in the summary
of credited testimony below. In addition, as explained
below, we find merit to the General Counsel’s exception
that the judge erred in failing to find that the Respondent
committed a violation of Section 8(a)(1) of the Act
through a statement which the judge found was made by
Diane Coger, whom the judge found to be an agent of the
Respondent.

1 Local Unions 59 and 116 are referred to collectively as “the Un-
ion.”
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of the evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
3 Consistent with Dean General Contractors, Inc., 285 NLRB 573
(1987), we agree with the judge that offers of employment and rein-
statement and the payment of backpay are appropriate remedies for the
Respondent’s discrimination, and we leave to the compliance stage of
these proceedings the determination how long each of the discrimina-
tees would have been employed at the Lewisville jobsite and subse-
quent sites, if any. We will also modify the recommended Order to
conform to our additional findings herein and to the Board’s decision in
Indian Hills Care Center, 321 NLRB 144 (1996).
Summary of the judge’s factual findings
The Respondent was the electrical contractor at a
Home Depot construction site in Lewisville. The Re-
spondent’s operation at the site was set up in June 19954
by its foreman, Doug Coger, and his wife, Diane Coger,
who was responsible for advertising and dealing with
temporary help agencies to secure electricians for the
project. On June 19, Diane Coger placed an employment
ad in the Dallas Morning News, seeking electricians and
helpers; the ad ran from early July to July 14.
On July 3, union member Donald Attaway, a journey-
man electrician with 18 years’ experience who was cur-
rently unemployed, applied in person at the site and took
a brief test administered by Doug Coger. Coger asked
Attaway if he knew of any helpers whom Coger could
hire and said he would be needing 10 to 15 journeymen.
Attaway then asked if it would be a union job and if the
Respondent would consider signing a union contract.
Coger told him the Respondent had decided not to use
union labor. Attaway was never hired by the Respon-
dent.5
On July 6, in response to the ad, Leonard Lynch, an
experienced journeymen electrician who had worked as a
Local 59 organizer during the previous 2 years, and two
other experienced journeymen, union member Jim
Mattson, and Marty Burleson, an organizer from Local
116, came to the Respondent’s construction trailer at
Lewisville. Mattson, who entered the trailer first, was
allowed to fill out an application, and he indicated on it
that he was a member and employee of Local 59. Lynch
and Burleson were told that they should make appoint-
ments to apply later, although Coger told Lynch that he
needed seven to eight journeymen right away. Coger
declined the request of Lynch and Burleson to sign a
contract with Local 59, saying that the Respondent had
decided to do this project with nonunion labor. When
Coger suggested that union members would not work for
the wages the Respondent was paying, Lynch and Burle-
son assured him members would. When Lynch later
returned on July 10 and filled out an application, Diane
Coger told him that Doug Coger was not there and Lynch
would have to return later to take a test. Burleson con-
tacted the jobsite by telephone that same day and was
told by Diane Coger that the Respondent was no longer
accepting applications. Mattson, Burleson, and Lynch
were never hired.
Electricians Hershal Dunagan and Randy Ballantine,
who had 10 and 25 years’ experience, respectively, were
unemployed when they sought jobs with the Respondent
on July 7. They wore union insignia, but Dunagan made
it clear that they were willing to work for $12 an hour,
4 All dates hereafter are in 1995 unless otherwise stated.
5 The Respondent has clearly abandoned its defense, discredited by
the judge, that Attaway was not hired because he performed poorly on
the test.
328 NLRB No. 163
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1166
the wage the Respondent was offering. Both filled out
applications6 and were told they would be called back for
interviews and tests. The Respondent failed to contact
either of them.
Union member Roger Grizzle, an unemployed jour-
neyman electrician who did not identify himself as a un-
ion organizer or wear any union insignia, also applied for
a job on July 6, and after he took the test, was hired. He
began working on July 10. Not long thereafter, in mid-
July, when he was in the trailer alone, he heard an in-
coming telephone message from Western Staff Services
inquiring about “the qualifications” desired for “the 10
electricians” that the Respondent needed. Later that
month, after Leonard Lynch had applied for work with
the Respondent through Western Staff Services, Diane
Coger reported to Doug Coger, in Grizzle’s presence,
that she had told Susan Terry, manager of the local office
of Western Staff Services, that the Respondent “can’t
use” Lynch because “he’s union.”
Between July 10 and August 7, the Respondent hired
seven electricians for the Lewisville site, and it hired 11
more from August 29 to November 1, most, if not all,
from other projects of the Respondent in other States.
On August 14, the Union set up a picket line at the
Lewisville site. Grizzle told Doug Coger that he was
leaving the site because he wanted to honor the union
picket line. Coger told Grizzle that if he left, he would
be treated as having quit. Later that day when Grizzle
came back and offered to return to work the next day,
Coger informed him that he had been terminated.
Analysis
The Respondent concedes that on the basis of the cred-
ited evidence, the General Counsel has satisfied his
Wright Line7 burden of showing that antiunion animus
was a motivating factor in its refusal to hire the six union
applicants. It contends that it should escape liability be-
cause it proved its Wright Line defense, i.e., that it would
not have hired those applicants even in the absence of
their protected activities because it was following a law-
ful policy of filling positions by transferring its employ-
ees from other jobsites on which work had finished. The
Respondent points to testimony of its witnesses about
such a policy and a paragraph in its employee handbook
stating that applications would be required to be submit-
ted through its national office in Marietta, Georgia,
whenever possible, and that “[W]ork will be assigned to
existing employees rather than hiring new employees.”
We agree with the judge’s rejection of this defense.
The judge acknowledged that the Respondent had trans-
ferred employees from other sites; but, as he noted, the

6 The Respondent asserted that it failed to find a copy of Dunagan’s
application in its files, but the judge credited Dunagan, corroborated by
Ballantine, that he had completed the application and turned it in.
7 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
Respondent had shown every intention of hiring locally
for the Lewisville site until it appeared that a number of
Union members and organizers were applying. The
judge cited ample evidence for his conclusion concerning
the Respondent’s evident change in plans. The Respon-
dent’s agent, Doug Coger, had initially indicated to em-
ployee Attaway on July 3 that he was looking to hire 10
to 15 journeyman electricians, and he did not suggest that
such employees were transferring from other sites. The
Respondent began telling the Union applicants that it was
not taking applications on July 10, by which time all six
self-identified Union members had applied. Yet the Re-
spondent’s local ad seeking journeyman electricians con-
tinued to run 4 days after that date, and Grizzle’s testi-
mony regarding the telephone message from Western
Staff Services revealed that even after July 10, the Re-
spondent was still seeking to hire through that agency.
Furthermore, in mid- to late July, when Diane Coger,
overheard by Grizzle, told her husband about her re-
sponse to Western Staff Services’ report of Lynch’s ap-
plication, she did not report telling Western Staff Ser-
vices that the Respondent didn’t need electricians, be-
cause it was getting them from other sites. She said
Lynch should not be sent out for an interview because he
was “union.”8
In addition to adopting the judge’s finding of the un-
lawful refusals to hire, we also agree with the judge, for
the reasons stated by him, that Grizzle was unlawfully
terminated when he made an offer to return to work after
honoring the picket line. An employee can be per-
manently replaced for honoring a picket line or otherwise
engaging in an economic strike, but he or she may not
lawfully be discharged for that reason. NLRB v. Interna-
tional Van Lines, 409 U.S. 48, 52–53 (1972). Grizzle
was clearly discharged for walking out in support of the
picket line, as Doug Coger made clear when Grizzle first
announced his intent to honor the picket line.
We find, however, that the judge erred in failing to
find that Diane Coger’s statement to Doug Coger, in the
presence of employee Grizzle, that she had told the
8 We also reject the Respondent’s defense as to Burleson and Duna-
gan that they had failed to file applications. As noted above, the evi-
dence credited by the judge shows that Dunagan did file an application
and that Burleson sought to do so but was told by telephone on July 10
that the Respondent would not accept any. There is similarly no merit
to the Respondent’s contention that it would not have hired Lynch in
any event because he had not worked in the trade for the previous 2
years, while he was working as a union organizer, and obviously had no
interest in returning to electrical work. Lynch was a journeyman elec-
trician with more than 20 years of experience who duly filled out an
application for employment, and his organizer status cannot be used for
deeming him other than a bona fide applicant. NLRB v. Town & Coun-
try Electric, 516 U.S. 85 (1995). We also note that in September 1995,
just 2 months after his unsuccessful attempt to get himself hired on
Respondent’s project, Lynch obtained work as a journeyman electrician
on construction jobs with other employers. This evidence belies Re-
spondent’s claim that Lynch was not in fact interested in working as an
electrician.
LIN R. ROGERS ELECTRICAL CONTRACTORS 1167
Western Staff Services manager that the Respondent
could not “use” Lynch because he was “union,” unlaw-
fully indicated that the Respondent would refuse to hire
applicants who were “union.” Such a statement is clearly
coercive and violates Section 8(a)(1) of the Act. See
Quality Control Electric, Inc., 323 NLRB 238 (1997).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below, and orders that the
Respondent, Lin R. Rogers Electrical Contractors, Inc.,
Lewisville, Texas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening employees that union applicants will
be refused employment.
(b) Failing and refusing to hire applicants who reveal
their actual or probable union affiliation on their job pub-
lications.
(c) Discharging employees because of their protected
union activity.
(d) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Don Attaway, Randy Ballantine, Marty Burleson,
Hershel Dean Dunagan, Leonard Lynch, and Jim Matte-
son employment in positions for which they applied or, if
such positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges to which they would have been
entitled if they had not been discriminated against.
(b) Within 14 days from the date of this Order, offer
Roger Grizzle full reinstatement to his former position
or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
(c) Make whole Don Attaway, Randy Ballantine,
Marty Burleson, Hershel Dean Dunagan, Leonard Lynch,
Jim Matteson, and Roger Grizzle for any loss of earnings
and other benefits they may have suffered by reason of
the discrimination against them by paying them a sum of
money equal to the amount they would have earned from
the date of the discrimination against them to the date of
the Respondent’s offer of employment, less net interim
earnings, with backpay to be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Roger Grizzle, and the refusals to hire Don Attaway,
Randy Ballantine, Marty Burleson, Hershel Dean Duna-
gan, Leonard Lynch, and Jim Matteson, and within 3
days thereafter notify them in writing that this has been
done and that the discharge and refusals to hire will not
be used against them in any way.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(f) Duplicate and mail to all employees who were on
the payroll at the Respondent’s Lewisville, Texas project
which is the subject of this case copies of the attached
notice marked “Appendix A.”9 Copies of the notice, on
forms provided by the Regional Director for Region 16,
after being signed by the Respondent’s duly authorized
representative, shall be duplicated and mailed at the Re-
spondent’s expense, and within 14 days after service by
the Region.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations not specifically found.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten employees that union applicants
will be refused employment.
WE WILL NOT fail and refuse to hire applicants who re-
veal their actual or probable union affiliation on their job
applications.
WE WILL NOT discharge employees because of their
protected union activity.

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1168
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order offer Don Attaway, Randy Ballantine, Marty Bur-
leson, Hershel Dean Dunagan, Leonard Lynch, and Jim
Mattson employment in positions for which they applied
or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges to which they would
have been entitled if they had not been discriminated
against.
WE WILL within 14 days offer Roger Grizzle full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make whole Don Attaway, Randy Ballantine,
Marty Burleson, Hershel Dean Dunagan, Leonard Lynch,
Jim Mattson, and Roger Grizzle for any loss of earnings
and other benefits they may have suffered by reason of
the discrimination against them, less net interim earn-
ings, plus interest.
WE WILL within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Roger Grizzle, and the refusals to hire
Don Attaway, Randy Ballantine, Marty Burleson, Her-
shel Dean Dunagan, Leonard Lynch, and Jim Mattson,
and WE WILL, within 3 days thereafter, notify each of
them in writing that this has been done and that the dis-
charge and refusals to hire will not be used against them
in any way.
LIN ROGERS ELECTRICAL CONTRACTORS, INC.

Elizabeth Kilpatrick, Esq., for the General Counsel.
Richard D. Anderson, Esq., of Topeka, Kansas, for the Res-
pondent.
DECISION
STATEMENT OF THE CASE
PHILIP P. McLEOD, Administrative Law Judge. I heard this
case in Fort Worth, Texas, on April 15 and 16, 1996. The case
originated from a charge filed by Local Union No. 59, Interna-
tional Brotherhood of Electrical Workers, AFL–CIO (Local 59)
in Case 16–CA–17563 and by Local Union No. 116, Interna-
tional Brotherhood of Electrical Workers, AFL–CIO (Local
116) in Case 16–CA–17563–2. On December 15, 1995, an
order consolidating cases, complaint and notice of hearing is-
sued. The complaint alleges that Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act (the Act),
by refusing to consider the employment applications of and
refusing to employ certain named individuals because they
were identified as union supporters or members or were re-
ferred for employment by the Union, and by terminating em-
ployee Roger Grizzle because of his support of the Unions.
In its answer to the consolidated complaint, Respondent ad-
mitted certain allegations, including the filing and serving of
the charges; its status as an employer within the meaning of the
Act; the status of the Unions as labor organizations within the
meaning of the Act; and the status of Doug Coger as a supervi-
sor of Respondent within the meaning of the Act. Respondent
denied the status of Diane Coger as either a supervisor or agent
of Respondent within the meaning of the Act, and denied hav-
ing engaged in any conduct which would constitute an unfair
labor practice within the meaning of the Act.
At the trial herein, all parties were represented and afforded
full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence. Following oral argument
on April 16, I delivered a bench decision pursuant to Section
102.35 of the Board’s Rules and Regulations. In accordance
with Section 102.45 thereof, I certify the accuracy of, and at-
tach hereto as “Appendix B,” the pertinent portion (pp. 275
through 290) of the trial transcript [errors in the transcript have
been noted and corrected]. Other minor errors may occur, but
are insignificant.
I have found that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act; that the Unions are labor organizations within the
meaning of the Act; and that Respondent violated the Act in the
particulars and for the reasons stated in my oral bench decision.
The unfair labor practices which Respondent has been found to
have engaged in have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices in violation of the Act, I shall recommend
that it be ordered to cease and desist and to take certain affirma-
tive action designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
APPENDIX B
BENCH DECISION
[Cases 16–CA–14814 and 16–CA–17563–2 April 15, 1996]
275
[ADMINISTRATIVE LAW] JUDGE [PHILIP P.] MCLEOD: I think
we all have recognized from the outset it is well-established
that the failure to consider or hire a job applicant because of his
or her union membership violates Section 8(a)(1) and (3) of the
Act, and the cases deciding this go back as far as 1941, as cited
by counsel for General Counsel in Phelps Dodge versus NLRB
at 313 U.S. 177.
The Board has—and the courts, and in fact, the Supreme
Court, have recently considered a series of cases dealing with
the subject of refusal or failure to hire, and, in fact, most—
recently the Board issued a decision in the Town & Country
case—NLRB versus Town & Country Electric—the Board’s
decision at 309 NLRB 1250 (1992).
The Supreme Court decision can be found at 150 LRRM
2897. It issued on November 28, 1995. The Town & Country
decision, by the way, is somewhat similar to the case here in
the sense that they were dealing with the question of the appli-
cations of full-time union personnel, business agents, and the
question of whether or not they were valid applicants for em-
ployment.
LIN R. ROGERS ELECTRICAL CONTRACTORS 1169
In the context of an unlawful refusal-to-hire case, the Gen-
eral Counsel must establish the following elements: Number 1,
an application for employment by the alleged
276
discriminatee; number two, the refusal to hire; number three, a
showing that the employer knew of the union applicant’s union
status or activities; and, four, that the employer refused to hire
the union applicants, due to union animus.
As counsel for General Counsel pointed out in her closing
argument, the Board does apply a Wright Line type of analysis
in its failure-to-hire cases. I would cite to you Big E’s Food-
land, Inc., 242 NLRB 963, a 1979 case in which the Board
articulated the refusal-to-hire test.
Using the Wright Line analysis and applying it to this case
leads me to the following conclusion. First of all, addressing
the issue of whether and to what extent Diane Coger was an
agent of the Respondent, I find that Diane Coger was an agent
of the Respondent for purposes of various actions related to the
hiring of employees.
That is not to say I find she is a supervisor within the mean-
ing of the Act; clearly she was not. And clearly she was not an
agent of the Respondent for every purpose, but the record re-
flects that she was an agent of the Respondent for certain pur-
poses related to the hiring of employees.
Specifically, I would rely on the testimony of Diane Coger
herself in describing her participation in the hiring process, in
the fact that she placed the newspaper
277
ads for employees at the particular facility where she worked;
her testimony that she, on her own—I don’t mean on her own
authority—but individually contacted the temporary service
with regard to obtaining local electricians.
I note as well the credible testimony of Susan Terry, that
when an order was placed for employees with her Western
employment services, two individuals were listed as contact
people with the Respondent, one being Douglas Coger, who is
clearly a supervisor within the meaning of the Act here, and the
second person being Diane Coger.
The second finding I make is that at some point in time, the
company—the Respondent clearly planned to hire local electri-
cians to do the work at the Lewisville, Texas, Home Depot
jobsite. The fact that the Respondent went to the trouble of
placing ads in the local paper itself suggests that it was intend-
ing to hire local electricians for that purpose.
Further, the credible testimony of Donald Attaway estab-
lishes that on July 3, Douglas Coger told him that the job would
take approximately 10 to 15 journeyman electricians, the impli-
cation being since Attaway was applying for work in that posi-
tion that Coger was talking about local electricians similar to
Attaway.
Thirdly, the credible testimony of Roger Grizzle
278
shows that as late as July 19, John Gudger the project manager
who had come in from Atlanta told Grizzle—or, excuse me—
asked Grizzle if he knew of others like him, and told Grizzle
that the company would like to hire more people like him.
Fourthly, the use of the personnel service, Western Tempo-
rary—or, excuse me—Western Services, shows that even as
late as July, in late July, Respondent was looking for local elec-
tricians to perform work, as I am completely satisfied that the
record establishes that Respondent planned to use local electri-
cians for the Lewisville project.
At some point, Respondent decided not hire the alleged dis-
criminatees, obviously. Now, in Respondent’s closing argu-
ment, Mr. Anderson effectively concedes that, in saying that
the company had decided it was not going to take any more
applications on the jobsite because, as the Respondent con-
tends, other employees were going to become available through
other projects.
There is no question at some point the Respondent decided it
was not going to hire local people. The question is, Why? That
is the issue in the case.
Looking at this from the perspective of assessing counsel for
General Counsel’s prima facie case, there is absolutely no
doubt in my mind she has established that
279
the union activities and sentiments of the applicants was a fac-
tor in Respondent deciding not to hire local—people for this
project.
First of all, I would note the credible testimony of Susan
Terry that in late July, Diane Coger told her that Respondent
preferred not to interview Leonard Lynch because he was a
union leader.
I am fully aware of the fact that that statement is denied by
Diane Coger, and I specifically credit Susan Terry with regard
to that statement. Susan Terry is a person who was totally disin-
terested in this proceeding: that is to say she is not an interested
party; she has no interest in the outcome; she has no interest in
supporting one side or the other.
And it was very clear from her testimony that she was rather
upset with both sides by the time the relationship with this par-
ticular case was over. She was just as irritated with the union
business agents who showed up and in her mind harassed her
with regard to trying to get work with the Respondent through
her facility as she was with Diane Coger for telling her that the
Respondent did not want to interview Leonard Lynch because
he was a union leader.
Secondly, I note the credible testimony of Leonard Lynch
that when he went to the project on July 6 and spoke
280
to Douglas Coger, Douglas Coger specifically told him that the
Respondent wanted to keep this project nonunion.
I also note similar credible testimony from Donald Attaway
in which he was told by Douglas Coger that the company had
decided not to do this job with union labor. Coger went on to
make a point that he had nothing against individual union peo-
ple, but that this was a call that had been made by the Company
from its headquarters, not by Mr. Coger.
I note, too, that to a certain extent, the Respondent played
games, engaged in somewhat of a subterfuge when it came to
the applicants who were union members, in that there came a
point, very early, as a matter of fact, where when any of the
people applied who were union members, they were told Re-
spondent was too busy to interview them, and they would be
called back for an interview and a test, and, of course, never
received any later call, for either an interview or a test.
Now, it can be argued this was because either the company
had decided not to use local people, which seems to beg the
question because that is the ultimate issue in the case, or it can
be argued that this did not occur because the Respondent be-
came so busy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1170
However, I note specifically with regard to that that Grizzle
was interviewed one day, and the very next day,
281
Ballentine was told that Respondent was too busy to interview
or to test him and would call him back. So it is not as if there is
very much of a time gap in there.
Moreover, I noticed a pattern with regard to union members
being told repeatedly that they would be called back for an
interview and test.
Like the testimony of Lynch and Attaway, Roger Grizzle tes-
tified credibly. He was told by Douglas Coger that while
Rogers was union in some places, it was not going to do this
job nonunion.
The fact that the Respondent has some union contracts in
other places really helps us very little in analyzing this case,
because the issue is what happened here and why. And by
Douglas Coger’s own comments to employees, this project was
somehow different from other projects, in that Respondent had
decided it was going to do this project nonunion.
Going also to the question of Respondent’s motivation for
not hiring union people in assessing counsel for General Coun-
sel’s prima facie case, I am very mindful of what I consider to
be very credible testimony of Roger Grizzle concerning the
incident with Leonard Lynch at Western Staffing.
Not only did we have the testimony of Susan Terry
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with regard to what happened at Western Staffing, but we had
very credible testimony from Roger Grizzle that he overhead
Diane Coger come out of a trailer at Respondent’s facility and
say to Douglas Coger, Oh, no. Leonard Lynch is at Western
Staffing; he is union; we can’t hire him. And Douglas Coger
responded, Wow. I can’t believe they busted that that quick, or
words to that effect.
We then get to the question of why, then, did Respondent
decide not to hire local people, and all of the evidence that I
have cited tends to suggest that Respondent made that decision
because it had decided, as Douglas Coger stated, that this was
going to be a nonunion job.
The bringing-in of Respondent’s employees from other pro-
jects does not suggest a nondiscriminatory action by Respon-
dent, but rather—suggest a plan by Respondent to bring them in
precisely to avoid hiring local people.
Now, in assessing the counsel for General Counsel’s case
with regard to Grizzle, there is really no factual dispute at all
between either Grizzle or Douglas Coger. Grizzle testified that
on the day he was terminated and the picketing was going on,
he was told by Douglas Coger, if you go out there, you are
quitting.
After he went out and talked to people on the picket
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line and, in fact, honored the picket line for most of that day, he
came in later in the day and told Mr. Coger that he would be
back tomorrow morning. According to Grizzle, Mr. Coger told
him, Well, you don’t have to worry about that; we terminated
you.
Douglas Coger’s testimony is not only not that different; it is
actually stronger in support of counsel for General Counsel’s
case than is Grizzle’s. Coger admits telling Grizzle, If you
leave now I am going to have to terminate you.
He admits, as Grizzle testified, that when he came back he
told Grizzle that he had, in fact, terminated him. But what
really puts the icing on the cake in terms of counsel for General
Counsel’s prima facie case with regard to Grizzle is Coger
specifically testified Grizzle specifically told him the reason he
was going out was because he “wanted to honor their picket
line.”
In a case like that, the law requires that the company treat an
individual who leaves work to honor a picket line in the same
manner as a striker. It was Repondent’s obligation to simply
trat Grizzle as a striker. It could, no question, have permanently
replaced him, but that is not what it did; it terminated Grizzle.
From the evidence that I have referred to, there is no ques-
tion in my mind that counsel for General Counsel
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has established a very strong prima facie case that the individu-
als who applied for work and who indicated on their applica-
tions that they were members of the union were not hired by
Respondent precisely because of their union affiliation.
The question under Wright Line then becomes whether or not
the Respondent can establish by sufficient evidence that these
people would not have been hired, regardless of the union ac-
tivity.
In assessing that issue, we tend, then, to look at the issue of
Respondent bring in people from other locations, or ultimately
we do.
In my assessment of the Respondent’s position in this case, I
would have to say that there appear to be a few gaping holes in
Respondent’s theory. First of all, the decision not to hire local
people—that is to say the change in its position, its initial
movement toward hiring people is really not adequately ex-
plained.
By Diane Coger’s testimony, Respondent ran an ad in the lo-
cal paper from, as she put it, early July for two weeks, takes
you at least up to July 4, yet both the testimony of Diane Coger
and Doug Coger shows that absolutely without question, Re-
spondent started telling potential applicants for work that
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Respondent was no longer taking applications as of July 10.
The clear implication is that that ad may very well still have
been running at the time that Respondent made that decision,
and if it wasn’t, it was incumbent on Respondent to show that,
because the testimony of their own witnesses is the testimony I
rely on to draw that conclusion.
Secondly, it is significant that the decision not to take any
further applications was made on July 10, right at the peak of
union applications coming in. Respondent has shown no evi-
dence of anything having occurred on or about July 10 for it to
reverse the decision to hire local people and instead bring peo-
ple in from outside.
Thirdly, Respondent’s evidence regarding its practice of
moving people from project to project is not adequately ex-
plained. Two simple paragraphs in the company handbook do
not adequately explain the change in the decision to hire local
people at this project on or about July 10.
This is particular true when people from other projects were
brought in when those other projects were not even yet com-
plete.
The simple fact is that nothing has been shown to have hap-
pened of any unexpected nature to cause a shift in
LIN R. ROGERS ELECTRICAL CONTRACTORS 1171
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the hiring emphasis from local people to bringing in people
from other projects.
Any termination of other projects or slowing down of other
projects would have already been known to the Respondent, as
testified to by Douglas Coger himself.
And last but not least, this decision to supposedly bring peo-
ple in from other projects and not use local people seems to be
belied by the fact that in late July, Respondent was still trying
to use or get in contact with possible local people by use of the
temporary or employment service.
I conclude, therefore, that the Respondent has not established
that the alleged discrinimatees would not have been hired re-
gardless of their union activity or affiliation. I then get to the
questions of whether or not the discriminatees in this case do
include Dunagan.
The testimony of Dunagan—and, frankly, I found it credi-
ble—was that he did apply. The testimony of Ballentine, which
I also found credible, was that he saw Dunagan apply.
Diane Coger really doesn’t deny that. In fact, she agrees that
he probably did fill out an application. She testified that she
simply didn’t find it after they left. I reallly don’t need to dis-
credit her on this issue, and I don’t want to discredit people
unnecessarily in making a
287
decision.
There really is not very much factual dispute. The Respon-
dent’s position is, Well, since it didn’t have or couldn’t find an
application for Dunagan, it couldn’t very well consider him.
But I specifically find that by then, the Respondent had made a
decision not to hire local applicants in order to avoid hiring
local union people.
That gets to the question of Burleson. Burleson’s testimony
is really not challenged on a credibility standpoint as to whether
or not on July 10, he called and was told by Diane Coger that
Respondent was no longer taking applications.
My recollection is and my notes show that Diane Coger testi-
fied she didn’t recall any call, but if, in fact, she testified that he
did not call, I credit Burleson that he did, and I find that, in-
deed, Burleson on July 10, as everyone else on and after July
10 who did call were told that Respondent was no longer taking
applications. It was simple.
One of the issues in this case that was raised in opening re-
marks and by the parties is whether or not a backpay remedy
should fo to union business agents in this case. Obviously, the
business agents were employed full-time by the union, and the
question is would they have possibly taken jobs with the Re-
spondent even if they had
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been offered them?
I am aware that this is an issue which the Board at some
point may have to address. I am by no means in this case sug-
gesting as a matter of law that full-time paid union business
agents should automatically get back pay when they are dis-
criminated against. I don’t need to make that finding in this
case.
In fact, I strongly suspect that that is a decision which is go-
ing to have to be addressed by the Board in a case-by-case fash-
ion. And in this case, the evidence absolutely, clearly, unquali-
fiedly shows that a paid business agent, in fact, worked for the
Respondent—Grizzle.
That was developed by counsel for Respondent on cross-
examination of Grizzle, that while he worked for Respondent
he was a full—he was a paid business agent of the union.
Therefore, there is no reason to believe in this case that other
business agents of the union would not similarly have taken
jobs with the Respondent had they been offered them.
They might very well have been getting paid by two sources
at the same time, but that is not of concern to the Board. The
Board is concerned with devising a remedy for the discrimina-
tion—and I understand Respondent’s argument that they should
not receive a bonus, and the
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Respondent should not be penalized.
But in this case, the evidence shows that it would not be a
penalty; that in fact, there were paid business agents who—or a
least one who worked for the Respondent.
I want to address a few of the remarks of the Respondent’s
counsel in his closing statement, one of which was that the
evidence was uncontroverted manning or staffing was essen-
tially done by people from other jobs.
Actually, the record is relatively poorly developed on that
point, and it is one of the factors that I take into account in find-
ing the Respondent has not carried the burden—its burden in
this case.
If, in fact, the Respondent had some pattern, some longstand-
ing practice of moving people from job to job, I think the evi-
dence should have been much more than was offered in this
proceeding, showing the actual practice of the company over
the last six months, the last year, over any number of given
projects.
All of that information, all of the records tending to establish
that are within the custody and control of the Respondent, and
all of that could have been placed into the record.
Instead I had simple statements by witnesses that that was
done, and where there are records in the
290
possession of the Respondent that would tend to prove that, and
they are not put into the record.
But instead I simply have oral testimony, I have a real doubt
whether or not the record would tend to support that, and to
some extent do draw an adverse inference. But more impor-
tantly, the record is simply not developed that that pattern truly
exists.
ORDER
With regard to the remedy for the violations that I have
found, it will be contained in the supplemental decision, which
I am required to issue pursuant to the Board’s rules and regula-
tions, and briefly I will simply say that it will be the remedy
articulated by counsel for General Counsel in her closing
statement. It is the traditional remedy in refusal-to-hire cases.
I would note for the parties that pursuant to the Board’s rules
and regulations, Section 102.45, that if an administrative law
judge delivers a bench decision, then promptly upon receiving
the transcript, the judge shall certify the accuracy of the pages
of the transcript containing the decision, file with Board, a cer-
tified copy of those pages, together with any supplementary
matter the judge may deem necessary to complete the decision,
and cause a copy thereof to be served upon each of the parties.